One A.I Muhammad sold land measuring 16 Kanals in favour of respondents vide Mutation No.55, dated 5--8-1980 for an ostensible price of Rs.30,000. On 30-7-1981, petitioners filed a suit for possession of the land through the exercise of their superior right of pre-emption on the ground that the petitioners were collaterals of the vendor as also the owners in estate. The claim was contested. Issues were framed. Evidence of both the parties was recorded. Vide judgment dated 14-2-1985, the Trial Court decreed the petitioners' suit, but on the question of price (Issues Nos.4 and 5), the Trial Court accepted the report of the Local Commissioner and fixed the same as Rs.17,400 as against Rs.10,000 pleaded by the petitioners to be the actual price. Against the decree, respondent-vendees filed an appeal which was allowed on 8-10-1985. The Appellate Court reversed the findings on the issue of superior right (issue No.3) as well as the price (Issues Nos.4 and 5), but apparently did not give its own findings on the issues. It dismissed the suit. By way of this petition under section 115, C.P.C., the plaintiffs' pray for setting aside the appellate judgment and restoration of the decree of the trialCourt.
2. The Trial Court held the petitioners to be enjoying the superior right on the strength of pedigree- table (P.3) and the statement of vendee as D.W.1. The Appellate Court reversed this finding on the sole ground that none of the petitioners-plaintiffs appeared in the witness-box to corroborate the averments made in the plaint, the contents of which are otherwise no evidence in themselves.
Although it noted that D.W.1 'supported the relationship but did not give any credit of the same to the petitioners. Learned counsel for the petitioners has contended that the finding recorded by the Trial Court under issue No.3 is absolutely correct and did not merit any interference. For this purpose he has read before me the entire evidence and, in particular, the contents of Exh.P.3 as well as the statement of D.W.1.
3. On the contrary, learned counsel for the respondents, by relying on Muhammad Hussain v.
Muhammad Khan (1989 SCM R 1026) and Muhammad Naeem and others v. Ghulam Muhammad and others (1994 SCM R 559), has strenuously urged that no finding can be given in favour of the plaintiffs on the strength of pedigree-table, alone. It is asserted that failure of the plaintiffs to appear in the witness-box is fatal.
4. It is correct that the law laid down by the Supreme Court in the above--noted judgments is that unless the pedigree-table is shown to be related to the plaintiff, no finding can be recorded on the strength of the pedigree-table alone. But the principle is not applicable in the present case, inasmuch as, in this case vendee Habibullah appeared as D.W.1 and in. Cross-examination admitted the relationship of the vendor with the petitioners. He further admitted that the vendees were not in any way related to the vendor. This being so, the requirement that it must be shown that the pedigree-table relates to the plaintiff stands fulfilled. In fact one can go further and disregard the pedigree-table (Exh.P,3) but still return a finding of relationship in favour of the petitioners on the strength of the statement of D.W.1 alone. The Appellate Court has acted illegally in failing to give effect to the statement of D.W.1. Resultantly, its finding under Issue No.3 is set aside and that of the Trial Court is restored.
5. Under instructions from his clients, who were present in Court, the learned counsel has stated that he would not press the issue relating to price (Issues Nos.4 and 5) and that his clients accept the figure of Rs.30,000 claimed by the vendees as the correct price and they were and willing to pre-empt the sale on this price. In the circumstances, the controversy under these issues comes to an end and it is held that the price actually paid by the vendee was Rs.30,000.
6. For the reasons stated above, this revision is allowed. The appellate judgment is set aside and a decree, as prayed for, shall issue in favour of the petitioners and against the defendants- respondents. The petitioners will deposit Rs.30,000 in the Trial. Court minus the amount already deposited, within one month from today, failing which their suit shall be deemed to have been dismissed. The parties are left to bear their own costs.